United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court on the motion of plaintiff Devon
Scott Alvey, a prisoner, for leave to commence this civil
action without prepayment of the required filing fee. Having
reviewed the motion and the financial information submitted
in support, the Court has determined to grant the motion, and
assess an initial partial filing fee of $3.87. See
28 U.S.C. § 1915(b)(1). Additionally, for the reasons
discussed below, the Court will give plaintiff the
opportunity to file an amended complaint.
U.S.C. § 1915(b)(1)
to 28 U.S.C. § 1915(b)(1), a prisoner bringing a civil
action in forma pauperis is required to pay the full amount
of the filing fee. If the prisoner has insufficient funds in
his prison account to pay the entire fee, the Court must
assess and, when funds exist, collect an initial partial
filing fee of 20 percent of the greater of (1) the average
monthly deposits in the prisoner's account, or (2) the
average monthly balance in the prisoner's account for the
prior six-month period. After payment of the initial partial
filing fee, the prisoner is required to make monthly payments
of 20 percent of the preceding month's income credited to
the his account. 28 U.S.C. § 1915(b)(2). The agency
having custody of the prisoner will forward these monthly
payments to the Clerk of Court each time the amount in the
prisoner's account exceeds $10.00, until the filing fee
is fully paid. Id.
support of the instant motion, plaintiff submitted an inmate
account statement showing an average monthly deposit of
$10.39, and an average monthly balance of $19.37. The Court
will therefore assess an initial partial filing fee of $3.87,
which is twenty percent of plaintiff's average monthly
Standard on Initial Review
28 U.S.C. § 1915(e)(2), the Court is required to dismiss
a complaint filed in forma pauperis if it is frivolous,
malicious, or fails to state a claim upon which relief may be
granted. An action is frivolous if it “lacks an
arguable basis in either law or fact.” Neitzke v.
Williams, 490 U.S. 319, 328 (1989). An action fails to
state a claim upon which relief may be granted if it does not
plead “enough facts to state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). Determining whether a complaint states a plausible
claim for relief is a context-specific task that requires the
reviewing court to draw upon judicial experience and common
sense. Id. at 679. The court must assume the
veracity of well-pleaded facts, but need not accept as true
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements.”
Id. at 678 (citing Twombly, 550 U.S. at
Court must liberally construe complaints filed by laypeople.
Estelle v. Gamble, 429 U.S. 97, 106 (1976). This
means that “if the essence of an allegation is
discernible, ” the court should “construe the
complaint in a way that permits the layperson's claim to
be considered within the proper legal framework.”
Solomon v. Petray, 795 F.3d 777, 787 (8th Cir. 2015)
(quoting Stone v. Harry, 364 F.3d 912, 914 (8th Cir.
2004)). However, even pro se complaints must allege facts
which, if true, state a claim for relief as a matter of law.
Martin v. Aubuchon, 623 F.2d 1282, 1286 (8th Cir.
1980). Federal courts are not required to assume facts that
are not alleged, Stone, 364 F.3d at 914-15, nor are
they required to interpret procedural rules so as to excuse
mistakes by those who proceed without counsel. See McNeil
v. United States, 508 U.S. 106, 113 (1993).
brings this action pursuant to 42 U.S.C. § 1983 against
corrections officers Joseph Hurst and Steven Patterson. He
sues the defendants in their official capacities only.
statement of claim spans 10 pages and 67 numbered paragraphs,
which plaintiff states describe “the events leading up
to, and the excessive use of force.” Condensed and
summarized, plaintiff alleges that, following a long
confrontation with Hurst, Hurst pushed plaintiff down while
he was handcuffed, causing him to hit his head. Hurst then
choked plaintiff into unconsciousness while Patterson
restrained plaintiff's legs. Plaintiff sustained injuries
to his neck and right shoulder, and has “bad
pain” in them. He seeks only monetary relief.
complaint is subject to dismissal. Plaintiff specifically
indicates that he sues the defendants in their official
capacities only, and he seeks only monetary relief. While a
state official may be sued in his official capacity for
prospective injunctive relief, the Eleventh Amendment
prohibits suits for monetary relief against state officials
acting in their official capacities. Nix v. Norman,
879 F.2d 429, 432-33 (8th Cir. 1984). Additionally,
“state officers sued for damages in their official
capacity are not ‘persons' for purposes of the suit
because they assume the identity of ...